Bar Journal 2013 Issues (Volume 84)

What Happens Now?

Weighing Section 2056, the Federal Anderson Trilogy Standard and the State Constitutional Right to Trial

By James C. Milton & Travis G. Cushman

Over the past four years, many Oklahoma attorneys have wondered whether Section 2056 of the Oklahoma Pleading Code1 would forever change Oklahoma summary judgment standards. Section 2056 was enacted in 2009 as part of the Oklahoma Comprehensive Lawsuit Reform Act (CLRA).2 Until recently, the Oklahoma Supreme Court had remained silent on the role of Section 2056 in summary judgment proceedings. In November 2012, the Oklahoma Supreme Court entered a brief order3 according “precedential value” to an Oklahoma Civil Court of Appeals opinion, which in turn stated Section “2056 governs the procedure for summary judgment.”4

Both the Supreme Court’s order and the Court of Civil Appeals’ opinion left open the important issues of whether Section 2056 changed the standard for summary judgment and whether Oklahoma’s constitutional right to trial permits adoption of the Anderson trilogy. Although the CLRA was recently struck down in its entirety on the basis of logrolling, a 2011 amendment to Section 2056 appears to save the statute from the effect of Douglas v. Cox Retirement Properties Inc.5

Section 2056 sets forth standards for summary judgment in state court proceedings. According to the statute, judgment “should be rendered if … there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.”6

At first glance, Section 2056 presents only a superficial change from the previously long-held standard in Rule 13 that judgment should be rendered if “there is no substantial controversy as to the material facts and ... one of the parties is entitled to judgment as a matter of law.”7 Substantively, Section 2056 merely substitutes the phrase “genuine issue” for “substantial controversy.”8 Can this modest change mark a fundamental shift in summary judgment jurisprudence?

ENACTMENT OF SECTION 2056

There can be no doubt that, in enacting Section 2056, the Oklahoma Legislature intended to bring the federal summary judgment standard to Oklahoma state courts. The CLRA also contained a cap on non-economic damages, mandatory disclosures regarding proof and computation of damages and more restrictive laws on joint and several liability and pre-judgment interest.9

In fact, the critical language of the “reformed” Oklahoma statute borrows substantially from Rule 56 of the Federal Rules of Civil Procedure. The significance of this change derives from a trilogy of decisions announced in 1986 by the United States Supreme Court that fundamentally shifted the federal court standard on summary judgment. Under the Anderson trilogy, federal district courts are given greater latitude to consider factors such as who carries the ultimate burden of proof at trial and whether that party has sufficient evidence to meet its evidentiary burden.8 By contrast, Oklahoma courts historically will not enter summary judgment if the nonmoving party shows the court “any evidence” in support of the elements of its claims.9

Some observers believe the enactment of Section 2056 altered the Oklahoma standard to now conform with the federal courts’ friendlier approach toward summary judgment.12 Indeed, Oklahoma courts routinely look to federal jurisprudence to interpret state laws patterned after their federal counterpart.13 However, the federal standard for summary judgment is not dictated by the text of the rule itself, but arises from U.S. Supreme Court decisions applying Rule 56. Furthermore, a series of Oklahoma Supreme Court decisions issued in 1998 suggest that Oklahoma’s summary judgment standard is based, in part, on Oklahoma’s constitutionally protected right to trial, thus precluding adoption of the federal standard.

STATE AND FEDERAL SUMMARY

JUDGMENT STANDARDS BEFORE AND AFTER THE ANDERSON TRILOGY

Prior to the Anderson trilogy, the federal standard was much more cumbersome than it is today. To prevail on summary judgment, “a defendant needed to come forward with evidence negating the plaintiff’s case.”14 Federal courts had also held that “so long as there was the ‘slightest doubt as to the facts,’ a genuine issue of material facts existed within the meaning of Rule 56(c) and summary judgment was inappropriate.”15 Thus, “[e]ven if the plaintiff’s case was entirely devoid of proof, the defendant could not obtain summary judgment without proving the nonexistence of an essential element of that case.”16 Oklahoma courts largely followed this federal jurisprudence.17

All of that changed with the U.S. Supreme Court’s adoption of the Anderson trilogy in 1986. Following the Anderson trilogy, the Oklahoma standard for summary judgment differed sharply from the federal standard.18

First, and perhaps most notable for everyday practitioners, the U.S. Supreme Court eased the burden upon the moving party to obtain summary judgment where the nonmoving party bears the ultimate burden of proof at trial. Under the Anderson trilogy, the moving party need not submit evidence negating an essential element of his adversary’s claim.19 Instead, the movant may simply point out that the nonmoving party lacks evidence to establish a claim at trial.20 The burden then shifts to the nonmovant to show there is a genuine issue for trial.21

The U.S. Supreme Court rationalized that nothing in Rule 56, specifically the language “no genuine issue as to any material fact,” required the movant to negate the opponent’s claim.22 Further, “Rule 56(c), which refers to ‘the affidavits, if any’ (emphasis added), suggests the absence of such a requirement.”23 Section 2056 contains both the “no genuine issue as to any material fact” and “if any” language; Rule 13 does not.24

In contrast, Oklahoma courts historically have required a movant to submit admissible evidence that forecloses any possibility that the nonmovant may establish a claim, irrespective of which party carries the ultimate burden of production at trial.25 Stated differently, a moving defendant must negate his opponent’s claims, even where the nonmovant will have the ultimate burden of proof at trial.

A corollary to the burden shifting under the Anderson trilogy is the effect of a non-movant’s failure to respond to a summary judgment motion. In federal court, a failure to respond is deemed a confession.26 Not so in Oklahoma state courts, where, in the event of a failure to respond, “it is still incumbent upon the trial court to ensure that the motion is meritorious.”27

Second, the Anderson trilogy provides that any variation in the underlying standard of proof applicable at trial should be taken into account when viewing the evidence.28 That is, “the judge must view the evidence presented through the prism of the substantive evidentiary burden.”29 The Supreme Court reasoned that the phrase “no genuine issue of material fact” in Rule 56 necessarily “provides that the mere existence of some alleged factual dispute be-tween the parties will not defeat an otherwise properly supported motion for summary judgment.”30 Again, Section 2056 mimics this language; Oklahoma Rule 13, while coming close, does not.31

In Oklahoma, the trial judge historically is not permitted to consider a heightened evidentiary standard.32 For example, a plaintiff must prove a claim of fraud by clear and convincing evidence.33 When ruling on summary judgment or demurrer, though, the state trial court cannot consider this heightened standard of proof.34 In Oklahoma courts, a plaintiff may escape summary judgment by offering any evidence to support a claim, even if the claim is governed by a heightened standard of proof.35 But under the federal Anderson trilogy standard, for example, “the trial judge ... should consider whether a reasonable factfinder could conclude ... that the plaintiff [can show] actual malice with convincing clarity.”36

Finally, the Anderson trilogy grants a judge reviewing a motion for summary judgment significantly more discretion in weighing the evidence. Now, a federal judge must assess “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”37 The rationale is a continuation of the balancing a court must perform to determine whether there exists a “genuine issue of material fact.”38 In contrast, the trial judge is not permitted to weigh the evidence in Oklahoma courts.39

Although the U.S. Supreme Court found support for the Anderson trilogy in the statutory language of Federal Rule 56, the decisions marked a clear shift in summary adjudication standards at the federal level.

THE OKLAHOMA SUPREME COURT’S APPARENT REJECTION OF THE

ANDERSON TRILOGY

In the years following the U.S. Supreme Court’s pronouncement of the Anderson trilogy, the Oklahoma Supreme Court avoided adoption of the new federal standard,40 despite Rule 13’s recognized similarity to Federal Rule 56.41 Although the court never adopted a uniform rationale for maintaining Oklahoma’s stricter summary judgment standard, two dissents and three majority opinions written by Justice Marion Opala hint that Oklahoma’s constitutional right to a jury trial (and the right to trial in equitable proceedings) precludes adoption of the Anderson trilogy. Despite Justice Opala’s death in 2010, these opinions could reveal how at least some members of the Oklahoma Supreme Court will view the effect of Section 2056 on Oklahoma law.

The first clue as to the Oklahoma Supreme Court’s treatment of the Anderson trilogy came in the form of an unpublished order issued in 1997.42 In Jackson v. Heyman, the defendant succeeded in overturning a jury verdict in favor of the plaintiff on a fraud claim with a motion for new trial and JNOV. On appeal, one of the primary issues faced by the Court of Civil Appeals was whether the trial court, in granting JNOV, should have applied the clear-and-convincing standard, or whether post-trial motions were governed by the “any-evidence” standard traditionally followed in Oklahoma. The defendants urged the court to adopt the Anderson trilogy view that a judge must look through the prism of the underlying burden of proof. In response, the plaintiff argued that a clear-and-convincing standard for a JNOV motion in a fraud case would require the trial judge to take an additional step of weighing the evidence to determine if the evidence at trial rose to the level of the substantive evidentiary burden; the judge would be second-guessing the jury. The additional step, the plaintiff contended, in-fringed on the plaintiff’s constitutional right to a trial by jury, pursuant to Article 2, Section 19 of the Oklahoma Constitution.

The Court of Civil Appeals reversed the JNOV. In its decision, the court noted prior case law prohibiting a judge from considering heightened burdens of proof. The court specifically declined to adopt the Anderson trilogy, concluding as follows: “Our supreme court must decide whether Anderson has persuaded it to adopt a different view from the one expressed in [prior jurisprudence].” The defendants completed the invitation to the Oklahoma Supreme Court by filing a petition for writ of certiorari. In their request for certiorari, the defendants urged the Supreme Court to change the Oklahoma summary judgment standard to follow the Anderson trilogy.

On certiorari, the Oklahoma Supreme Court issued a clear but subtle answer to the question posed by the defendants and the Court of Civil Appeals. The Supreme Court unanimously denied certiorari, allowing the Court of Civil Appeals’ decision to stand. The Supreme Court’s decision to deny certiorari was unpublished, and was announced without an opinion explaining the basis for the decision. At the very least, the court’s denial of certiorari might reveal that the Anderson trilogy does not apply to fraud cases brought in Oklahoma state courts.

In two dissenting opinions filed in 1998, Justice Opala described — at least indirectly — his rationale for voting against certiorari in Jackson.43 In both Williams v. Tulsa Motels and Weldon v. Dunn, the Oklahoma Supreme Court affirmed the trial court’s summary judgment wherein the plaintiff had failed to properly identify supporting material facts and legal issues.44 Justice Opala’s dissenting opinions go to great lengths to differentiate Oklahoma summary judgment practice from the Anderson trilogy.45 Significantly, Justice Opala described the “inviolate” right to jury trial under Article 2, Section 19 of the Oklahoma Constitution as the source for the standard in Oklahoma.46 Justice Opala continued: “Because these standards are enshrined in the state constitution, they cannot be abrogated (impaired or abridged) by legislative or judicial action.”47 Although the two dissents are virtually identical, Justice Hardy Summers joined just one of these two dissenting opinions, “insofar as his opinion relates to Oklahoma summary judgment jurisprudence.”48

The attorney reading Justice Opala’s dissenting opinions in these two cases may wonder how much of his analysis is shared by the other members of the court. That question may be answered by three other 1998 decisions — Shamblin v. Beasley,49 Akin v. Missouri Pacific Railroad Co.,50 and Polymer Fabricating, Inc. v. Employers Workers’ Compensation Association.51 These decisions appear to have provided Justice Opala with his first opportunity to speak for the court on his view of the impact of state constitutional law on the summary-judgment standard. In Akin, the court reiterated that the moving defendant must negate his opponent’s claim, as opposed to the Anderson trilogy’s allowance that the moving defendant merely point out the absence of proof.52 However, in these three decisions of the court, Justice Opala did not outline the same detailed analysis between state and federal summary judgment law as he did in his dissenting opinions in Williams and Weldon. Instead, Justice Opala merely stated that summary judgment “is a method for identifying and isolating non-triable fact issues, not a device for defeating the opponent’s right to trial by jury.”53

Importantly, the Shamblin decision omits the phrase “by jury.” This appears to have been because Shamblin was an action in equity. This is important because the dissenting opinions in Williams and Weldon, and to a lesser extent the court’s decisions in Akin and Polymer Fabricating, tied the rejection of federal-court standards to the state constitutional right to jury trial. With Shamblin, the Oklahoma Supreme Court extended its rejection of federal summary-judgment standard to equitable actions in which there is no right to a jury.54 In addition, without much fanfare, the Shamblin court identified a state constitutional right to trial in equitable actions.55

The otherwise limited nature of these three decisions, though, reveals a great deal about the court’s prevailing view at that time regarding summary adjudication. The summary-judgment standard and analysis found in Shamblin, Akin, and Polymer Fabricating may have been the only portion of Justice Opala’s view on which the remainder of the court could agree. The analysis and discussion that were present in the dissenting opinions in Williams and Weldon, but absent from the decisions in Shamblin, Akin, and Polymer Fabricating, may have been Justice Opala’s view alone.

Three years later, Justice Kauger penned a dissent similarly expressing concern that the Anderson trilogy violates Oklahoma’s Constitutional right to trial by jury. After identifying several differences between the federal and state summary judgment standards, Justice Kauger wrote: “The federal approach to summary process has been characterized as the judiciary’s intrusion into an area formerly viewed as almost exclusively within the jury’s province.”56 Then, citing Article 2 Section 19 of the Oklahoma Constitution, Justice Kauger concluded, “Further, [the federal approach] may adversely impact a civil litigant’s constitutional right to jury trial.”57 Justice Opala joined in Justice Kauger’s dissent.58

As recently as 2002, Justice Opala succeeded in working a brief note into a majority opinion issued by the Oklahoma Supreme Court. The decision identifies a fundamental distinction between federal and state summary adjudication process: “In Oklahoma, the focus of summary process is not on facts a plaintiff might be able to prove at trial (i.e., the legal sufficiency of evidence that could be adduced), but rather on whether the evidentiary material, viewed as a whole, (a) shows undisputed facts on some or all material issues and whether such facts (b) support but a single inference that favors the movant’s quest for relief.”59

Oklahoma legal scholars should be intrigued by the possibility of conflict between state constitutional law and Section 2056 — with its corollaries in federal summary-judgment jurisprudence. State constitutional law arose as a movement in legal scholarship in 1977, with a “clarion call to state courts”60 by Justice William J. Brennan, Jr.61 This movement has grown over time, although some have criticized it either based upon disagreement with its results62 or dissatisfaction with the subjects addressed (sometimes necessarily) by state constitutions.63 The interrelation between the state constitutional right to trial and the summary judgment standard may not be as popular an issue as many areas of constitutional law, but there can be no doubt that the state right to trial is an individual liberty within the scope of those considered by Justice Brennan in his 1977 essay.64

In fact, at least one other state — Texas — has rejected the Anderson trilogy under constitutional language virtually identical to Oklahoma’s.65 The Texas Constitution states that “The right of trial by jury shall remain inviolate.”66 Pursuant to this language, the Texas Supreme Court has rejected shifting the burden of proof onto the non-movant.67 Further, Alaska,68 Florida,69 Idaho,70 Indiana,71 Kansas,72 Kentucky,73 New Jersey,74 New Mexico,75 Oregon,76 Utah,77 and Wyoming78 have all, to some extent, expressly rejected extending the Anderson trilogy to their own summary judgment standards. The summary judgment statutes of these states mirror the “no genuine issue as to any material fact” language found in Federal Rule 56 and Section 2056.79

EROSION OF THE OKLAHOMA SUPREME COURT’S REJECTION OF THE ANDERSON TRILOGY STANDARD

Both before and after Section 2056’s enactment, Oklahoma courts have showed a willingness to update Oklahoma’s summary-judgment standard, with the federal-court standard in mind. For instance, in 1999, the Oklahoma Supreme Court found that the First Amendment’s free speech protections require a plaintiff defending a motion for summary judgment to present evidence “such that a reasonable jury might find that actual malice had been shown with convincing clarity.”80 This marked a departure from prior Oklahoma law by allowing the judge to consider the underlying burden of proof on the malice element in a defamation claim.81

More recently, Tulsa County district judges in at least three proceedings have adopted the Anderson trilogy in discussing the standards for summary judgment.82 It is worth noting that not all trial court decisions find their way onto searchable databases, nor are all summary judgment rulings accompanied by an opinion. It is therefore likely that more Oklahoma trial courts have applied the federal standard.

THE OKLAHOMA SUPREME COURT’S TACIT APPROVAL OF SECTION 2056, AND WHAT IT MIGHT MEAN

On Nov. 19, 2012, the Oklahoma Supreme Court for the first time acknowledged Section 2056’s role in summary judgment, albeit in a very subtle and discreet manner. In the years following the passage of Section 2056, the Oklahoma Court of Civil Appeals had referenced Section 2056 on occasion, but the Supreme Court had never ruled on the propriety of doing so. It was therefore not unusual when the Court of Civil Appeals stated that Section “2056 governs the procedure for summary judgment.”83 It was, however, significant when the Supreme Court, in a 5-4 decision, held that the Court of Civil Appeals opinion “should be accorded precedential value and released for publication.”84 Perhaps foreshadowing a schism in the court’s future handling of Section 2056, the dissenting justices stated that they “would not give this opinion precedential value.”85

The Oklahoma Supreme Court’s tacit approval of Section 2056 speaks volumes in what is left unsaid. The Supreme Court could have ruled Section 2056 wholly unconstitutional for infringing on the right to trial. Alternatively, the Supreme Court could have ruled that, in enacting Section 2056, the Oklahoma Legislature lacked the authority to usurp Rule 13. Instead, the court avoided those issues. By according the Court of Appeals’ decision with precedential value, the Supreme Court at the very least acquiesced to Section 2056’s facial validity. Beyond Section 2056’s facial validity, there remain other issues that could yet surface. The Supreme Court’s order and the Court of Civil Appeals’ decision do not address whether Section 2056’s adoption brings with it the full extent of the federal standard, or whether Oklahoma’s constitutional right to trial prevents this result. These issues will likely be hotly debated.

CONCLUSION

It is unclear at this point how the Oklahoma Supreme Court ultimately will interpret and apply Section 2056. Oklahoma courts are likely to continue to apply Rule 13 to the extent that it does not contradict Section 2056. As indicated by some of the decisions discussed in this article, the courts have applied portions of Section 2056 where necessary to reach a decision. At some point, though, Oklahoma courts may be required to address, in a more conclusive fashion, whether Section 2056 requires the adoption of the Anderson trilogy in Oklahoma, and whether such a result is allowed under Oklahoma constitutional law.

Authors’ note: Thanks to Mitchell H. Craft, 3L student at OU College of Law, for examination of the Oklahoma Constitution’s requirement for re-enactment of statutes at the time of a statutory amendment.

5. The CLRA, enacted in 2009, was determined unconstitutional in 2013 based on the Oklahoma Constitution’s prohibition against logrolling. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, ¶10, 302 P.3d 789, 794. Section 2056 was amended in 2011. 2011 Okla. Sess. Laws 13 §2. It appears that this 2011 amendment may have saved Section 2056 from the Douglas decision. The Oklahoma Constitution requires that an amendment to a statute must re-enact the statute. Okla. Const. art. V, §57 (“[N]o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length.”). The Legislature may have reached the same conclusion. Initially, at least some legislators intended to re-enact Section 2056 during the 2013 Special Session. See Tim Talley, Lawmakers Seek to Revive Lawsuit Limits, The Journal Record, June 10, 2013, at 1. Special Session House Bill 1024 contained a re-enactment of Section 2056, but was not included in the 23 bills that were passed and signed by the Governor during the Special Session. [legiscan.com/OK/bill/HB1024/2013/X1 (accessed October 4, 2013)].

6. OKLA. STAT. tit. 12, §2056(C).

7. Rule 13 of the Rules for District Courts of Oklahoma.

8. Section 2056 introduces some other changes as well. For instance, practitioners will have noticed that many Oklahoma state court judges now comply with Section 2056(D)’s suggestion that “[i]f summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts, including items of damages or other relief, are not genuinely at issue. The facts so specified must be treated as established in the action.” Okla. Stat. tit. 12, §2056(D). (Note the statute’s use of “should” rather than “shall.”) Likewise, the appellate courts have noted the different standard for evidentiary substitutes in Section 2056(E) as compared to District Court Rule 13(C). See MidFirst Bank v. Wilson, 2013 OK CIV APP 15, ¶10, 295 P.3d 1142, 1145. This article focuses on the standard of review of summary judgment motions.

9. These other provisions appear to be stricken as unconstitutional. Douglas, 2013 OK 37, ¶10, 302 P.3d at 794. Like Section 2056, some of these provisions may have been saved by subsequent amendments.

11. For an indispensable analysis of the differences between the “no evidence” and “insufficient evidence” standards for pre- and post-trial motions, see William Powers Jr. & Jack Ratliff, Another Look at “”No Evidence” and “Insufficient Evidence,” 69 Tex. L. Rev. 515 (1991).

(accessed April 27, 2013).] Co-author James C. Milton worked as an associate on the legal team representing the plaintiffs in Jackson v. Heyman.

43. Justice Opala’s dissenting opinions do not mention the Jackson decision. But, on at least two occasions, Justice Opala publicly explained his view of the significance of the Court’s decision in Jackson. The first occasion was during a continuing education seminar sponsored by the Tulsa County Bar Association on May 19, 1998. The second occasion occurred later that year, on November 12, 1998, at the annual meeting of the Oklahoma Bar Association Appellate Practice Section. On both instances, Justice Opala stated his view that Oklahoma’s constitutionally protected right to a jury trial precluded adoption of the Anderson trilogy.

52. Akin, 1998 OK 102, ¶9, 977 P.2d 1040, 1044 (“To prevail as the moving party on a motion for summary adjudication, one who de-fends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff’s theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action.”).

61. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). It is worth noting that Justice Opala twice cited Justice Brennan’s article — once in a decision for the Court, and once in a dissenting opinion — for the proposition that “U.S. Supreme Court jurisprudence need not be dispositive of questions involving rights guaranteed by state constitutional provisions. States are free to interpret their own due process clauses to afford protection beyond that granted by the federal constitution, even when the state and federal constitutions are similarly or identically phrased.” Messenger v. Messenger, 1992 OK 27, ¶17 n.42, 827 P.2d 865, 872 n.42; Southwestern Bell Tele. Co. v. Oklahoma Corp. Comm’n, 1994 OK 38, ¶26 n.99, 873 P.2d 1001, 1026 n.99 (Opala, J., dissenting).

62. “Those who think of the movement as the product of Justice William Brennan’s call for state courts to rediscover their own constitutions are necessarily disappointed whenever they read an opinion reaching a result different from the one Justice Brennan probably would have reached.” Randall T. Shepherd, The Maturing Nature of State Constitution Jurisprudence, 30 Valparaiso U.L. Rev. 421, 421 (1996).

63. See Hans A. Linde, What is a Constitution, What is Not, and Why Does it Matter?, 87 Ore. L. Rev. 717 (2008). In the cited article, Justice Linde discussed the difference between state constitutions and “ordinary laws,” suggesting that constitutions should govern the structure of government, and should not contain “rules” that place a “cause of the moment ... beyond the reach of lawmakers elected to represent all the state’s people, both voters and nonvoters, and to take responsibility for balancing the state’s books.” Id. at 730.

64. “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.” Brennan, supra note 61, at 491.